Citation Nr: 9900471
Decision Date: 01/11/99 Archive Date: 01/19/99
DOCKET NO. 95-42 420 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for a bilateral
shoulder condition, secondary to the use of crutches for
service-connected residuals of a fracture of the right tibia
and fibula.
2. Entitlement to a total disability rating for compensation
purposes based on individual unemployability by reason of
service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
H. Roberts, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1958 to June
1961.
This appeal arises before the Board of Veterans’ Appeals
(Board) from an August 1995 rating decision of the Columbia,
South Carolina, Regional Office (RO) of the Department of
Veterans Affairs (VA), which denied the issues on appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has a current bilateral shoulder
condition, which is proximately due to or the result of the
use of crutches due to his service-connected residuals of a
fracture of the right tibia and fibula. The veteran also
contends that he is unable to secure or follow a
substantially gainful occupation by reason of his service-
connected disabilities, and that a total disability rating
for compensation purposes based on individual unemployability
by reason of service-connected disabilities is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the criteria for entitlement
to service connection for a bilateral shoulder condition,
secondary to the use of crutches for service-connected
residuals of a fracture of the right tibia and fibula, are
not met. It is also the decision of the Board that the
criteria for entitlement to a total disability rating for
compensation purposes based on individual unemployability by
reason of service-connected disabilities are not met.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claims has been developed.
2. The evidence does not show that the veteran’s bilateral
shoulder condition is proximately due to or the result of his
use of crutches due to his service-connected right leg
disability.
3. The evidence does not show that the veteran is precluded
from securing or following a substantially gainful occupation
solely be reason of his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a
bilateral shoulder condition, secondary to the use of
crutches for service-connected residuals of a fracture of the
right tibia and fibula, are not met. 38 U.S.C.A. §§ 1110,
5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.310 (1998).
2. The criteria for entitlement to a total disability rating
for compensation purposes based on individual unemployability
by reason of service-connected disabilities are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.16
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the veteran’s claims are
“well grounded” within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); that is, he has presented claims that are
plausible. He has not alleged that there are any records of
probative value that may be obtained which have not already
been associated with his claims folder. The Board
accordingly finds that the duty to assist the veteran, as
mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been
satisfied.
I. Entitlement to service connection for a bilateral
shoulder condition, secondary to the use of crutches for
service-connected residuals of a fracture of the right tibia
and fibula.
The veteran contends that he has a current bilateral shoulder
condition, which is proximately due to or the result of the
use of crutches due to his service-connected residuals of a
fracture of the right tibia and fibula. After a review of
the record, the Board finds that the veteran’s contentions
are not supported by the evidence, and his claim is denied.
Service connection may be established for a disease or injury
incurred in or aggravated by service, resulting in a current
disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§§ 3.303, 3.304 (1998). Service connection may also be
established for disability proximately due to or the result
of a disease or injury incurred in or aggravated by service.
38 C.F.R. § 3.310 (1998).
A May 1971 VA special orthopedic examination found that
examination of the shoulders revealed no deformity. There
was full range of motion and full motor function. No
tenderness was found. The examiner diagnosed bursitis of the
right shoulder.
An October 1995 VA joints examination notes that the veteran
had broken his right tibia. He stated he was treated with a
cast and crutch ambulation for two to three years from the
time of his injury. He complained of bilateral shoulder
pain. He stated that in 1969 he was diagnosed with bursitis
bilaterally, which he attributed to prolonged crutch walking.
The shoulder did not hurt all of the time, but mostly with
overhead activity or strenuous activity. Examination of the
shoulders revealed forward flexion to 155 degrees on the
right and to 150 degrees on the left; abduction to 120
degrees on the right and left; external rotation to 70
degrees on the right and to 60 degrees on the left, and
internal rotation to L3 or L4 bilaterally. He had normal
strength to abduction internal and external rotation and a
mildly positive impingement sign. Radiographs of both
shoulders revealed AC joint spurring on the left and superior
subluxation of the humeral head. The right shoulder revealed
AC joint spurring only. The examiner diagnosed bilateral
shoulder pain. The examiner stated that the veteran had
symptoms of impingement and possibly rotator cuff tears. The
examiner noted that “prolonged weight bearing with the upper
extremities, such as crutch walking, can significantly
contribute to impingement and even rotator cuff repairs. He
has, however, not been ambulating with crutches for over 20
years, and continues to have shoulder pain. Certainly, the
crutch walking may have contributed to the onset of shoulder
pain.”
A March 28, 1994, private medical report found that the
veteran had degenerative changes diffusely, particularly bad
in the shoulders.
At his June 1998 personal hearing, the veteran indicated that
his shoulder began hurting in 1969 and that he sought
treatment and was told he had bursitis and received cortisone
shots. He stated that he had not injured his shoulders in
any other way. He stated that he used crutches for close to
two years following his inservice right leg injury, and that
his shoulders bothered him later, after he stopped using
them. He also stated that he was treated for his shoulder
condition in 1980. The veteran stated that a doctor had told
him that his shoulder condition was probably due to the use
of crutches. He stated that he first noticed the shoulder
condition in 1969.
The Board finds that the criteria for entitlement to service
connection for a bilateral shoulder condition are not met.
The evidence does not show that any bilateral shoulder
condition was incurred in or aggravated by service.
Furthermore, the evidence does not show that the veteran’s
bilateral shoulder condition is proximately due to or the
result of his use of crutches due to his service-connected
right leg disability. There is a medical opinion that the
veteran’s use of crutches 20 years prior to that examination
“may have contributed” to his shoulder pain. However, the
Board finds that opinion to be speculative, and not to show
that it is as likely as not that any current shoulder
condition is proximately due to or the result of the use of
crutches for the veteran’s service-connected right leg
disability.
Accordingly, the Board finds that the criteria for
entitlement to service connection for a bilateral shoulder
condition, secondary to the use of crutches for service-
connected residuals of a fracture of the right tibia and
fibula, are not met, and the veteran’s claim therefor is
denied. The provisions regarding the benefit of the doubt
are not for application as the preponderance of the evidence
is unfavorable. 38 U.S.C.A. §§ 1110, 5107 (West 1991);
38 C.F.R. §§ 3.303, 3.304, 3.310 (1998).
II. Entitlement to a total disability rating for
compensation purposes based on individual unemployability by
reason of service-connected disabilities.
The veteran contends that he is unable to secure or follow a
substantially gainful occupation by reason of his service-
connected disabilities and that a total disability rating for
compensation purposes based on individual unemployability by
reason of service-connected disabilities is warranted. After
a review of the record, the Board finds that the veteran’s
contentions are not supported by the evidence, and his claim
is denied.
Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities: provided
that, if there is only one such disability, this disability
shall be ratable at 60 percent or more, and that, if there
are two or more disabilities, there shall be at least one
disability ratable at 40 percent or more, and sufficient
additional disability to bring the combined rating to 70
percent or more. For the above purpose of one 60 percent
disability, or one 40 percent disability in combination, the
following will be considered as one disability:
(1) disabilities of one or both upper extremities, or of one
or both lower extremities, including the bilateral factor, if
applicable, (2) disabilities resulting from common etiology
or a single accident, (3) disabilities affecting a single
body system, e.g. orthopedic, digestive, respiratory,
cardiovascular-renal, neuropsychiatric, (4) multiple injuries
incurred in action, or (5) multiple disabilities incurred as
a prisoner of war. It is provided further that the existence
or degree of nonservice-connected disabilities or previous
unemployability status will be disregarded where the
percentages referred to in this paragraph for the service-
connected disability or disabilities are met and in the
judgment of the rating agency such service-connected
disabilities render the veteran unemployable. Marginal
employment shall not be considered substantially gainful
employment. For purposes of this section, marginal
employment generally shall be deemed to exist when a
veteran's earned annual income does not exceed the amount
established by the U.S. Department of Commerce, Bureau of the
Census, as the poverty threshold for one person. Marginal
employment may also be held to exist, on a facts found basis
(includes but is not limited to employment in a protected
environment such as a family business or sheltered workshop),
when earned annual income exceeds the poverty threshold.
Consideration shall be given in all claims to the nature of
the employment and the reason for termination. It is the
established policy of VA that all veterans who are unable to
secure and follow a substantially gainful occupation by
reason of service-connected disabilities shall be rated
totally disabled. Therefore, rating boards should submit to
the Director, Compensation and Pension Service, for extra-
schedular consideration all cases of veterans who are
unemployable by reason of service-connected disabilities, but
who fail to meet the percentage standards set forth in
§ 4.16(a). The rating board will include a full statement as
to the veteran’s service-connected disabilities, employment
history, educational and vocational attainment and all other
factors having a bearing on the issue. 38 C.F.R. § 4.16
(1998).
The veteran has established service connection for residuals
of a fracture of the right tibia and fibula, evaluated as 20
percent disabling; adjustment disorder with mixed anxiety and
depression, evaluated as 30 percent disabling; a low back
condition, evaluated as 10 percent disabling; cicatrices of
skin and muscle of the right lower extremity, evaluated as 10
percent disabling; neuritis of the right lateral popliteal
left leg donor graft site, evaluated as 10 percent disabling;
right thigh skin graft site, evaluated as noncompensably
disabling; left thigh skin graft site, evaluated as
noncompensably disabling; right hip donor site, evaluated as
noncompensably disabling; and left hip donor site, evaluated
as noncompensably disabling. The veteran has established a
combined disability rating of 60 percent.
A January 27, 1993, VA medical report notes that the veteran
complained of pressure in the right knee and pain in the
right ankle. The veteran said he had pain in the right knee
and ankle since 1959. He said there was occasional swelling
of the right knee and ankle. The veteran wanted an
evaluation so that he could be increased to 100 disability.
Objective examination found a fused right ankle. The medial
collateral and anterior cruciate ligaments were lax. There
were no effusions, but there was moderate atrophy of the
right leg. The examiner provided an assessment of right
ankle fusion, and status post nerve damage of the right leg
from trauma.
A January 1994 statement form the veteran shows that he felt
he couldn’t walk without pain in the ankle and knee. He had
to change his job duties, his hours of work, his attendance,
and other things about his work. He stated that the
condition first bothered him in September 1959, and finally
made him stop working on January 20, 1994. He stated that he
could no longer do electrical construction work. He had
worked in electrical construction from 1962 to 1994. He made
$14.00 per hour.
A January 1994 private medical report notes that the veteran
could occasionally lift and/or carry 10 pounds. He could
frequently lift and/or carry 10 pounds. He could stand
and/or walk (with normal breaks) for a total of two hours.
This was due to his fracture of the tibia and fibula.
A March 1994 private medical report notes that the veteran
had degenerative joint disease and chronic pain in the right
lower extremity due to multiple injuries and surgeries. He
also had a recent depressive episode. There were
degenerative changes diffusely, particularly bad in the
shoulders, with chronic traumatic and post-surgical changes
in the right lower extremity. The veteran had been
nonresponsive to NSAIDs given for joint pain, depression had
been resolved with medication. The examiner diagnosed old
traumatic changes in the right lower extremity with decreased
use and chronic pain, degenerative joint disease, and
depression. The examiner opined that he felt that the
veteran should be declared disabled due to chronic pain, and
decreased use of the right lower extremity.
A March 1994 private medical report notes that the veteran
had a history of a tree having fallen on his ankle. He had
been in constant pain since that time, and indicated that the
pain had worsened. He had surgery and had the plates removed
some eight months later, but the pain continued. The
examiner noted clinical findings of angular varus deformity
of the right ankle, severe crepitus of the right ankle,
severe traumatic arthritis of the right ankle, and evidence
of possible nerve damage to the intermediate dorsal cutaneous
nerve. The examiner gave an impression that the bulk of the
veteran’s pain was related to the traumatic arthritis of the
right ankle and the angular deformity.
An April 21, 1994, VA medical report shows that the veteran
was a construction worker until January 1994 when he quit,
stating that a Dr. McGlamry told him to quit. He stated he
was there because he wanted 100 percent disability. He
complained of right ankle, right knee, low back pain, and
bilateral shoulder bursitis. He was taking Zoloft and
Klonopin for depression. He had a right tibia and fibula
fracture in 1959, and reported 13 or 14 operations upon it.
He stated that it felt better since he quit working.
Physical examination found the veteran’s right ankle to have
less than 5 degrees of extension, flexion, valgus, and varus.
The right knee was tender, stable, without effusion, and had
a full range of active motion. The back was tender at the
midline at L4-S1. There was almost full range of motion.
Straight leg raising was negative bilaterally. Strength was
5/5. Sensation was intact. Reflexes were 2+ throughout the
lower extremities. Hips were painless with full range of
motion. The shoulder were nontender with full range of
active motion. There was no impingement. There was mild
crepitation on the left. There was no weakness. Films
showed severe degenerative joint disease of the right ankle,
subtalar, and talonavicular joints. There was degenerative
joint disease of the medial compartment of the right knee.
The examiner diagnosed chronic low back pain, degenerative
joint disease of the right ankle and knee, and right shoulder
degenerative joint disease by history. The examiner noted
that the veteran was considering an ankle fusion but could
still walk long distances on it.
A May 1994 private medical report notes that the veteran
stated he was having back pain because of leg length
discrepancies, but had refused to work in the past. He also
complained of bilateral shoulder bursitis which he blamed on
walking on his crutches. He had normal range of motion of
the lumbar spine. He had a moderate to marked antalgic gait
on the right with walking with a stiff knee and a mild right
Trendelenburg gait. Measured standing on his iliac crest,
his right iliac crest was one half inch lower than his left.
He notes that he had bone grafts from both. The examiner
could detect no measured leg length discrepancy measuring
from the anterior superior iliac crests. Straight leg
raising was normal. Examination of lower extremities
revealed right knee motion from 0 degrees to 165 degrees,
comparable to the left. He had no knee effusion and no
instability. He had marked scarring over the right lower
extremity with some varus deformity and a 15 degree varus
deformity of the ankle. He had well-healed surgical scars
over the medial and lateral malleolus of the right side with
hyperpigmentation on the lateral malleolar scar. The scars
were not particularly tender. He had marked scarring over
the right anterior tibia with fixed and shiny skin to the
tibia and a prominent bony protuberance in the junction of
the middle and distal third of the tibia. He had essentially
no talotibial motion and minimal subtalar motion of his
forefoot. All of his motion from the right foot comes from
the forefoot. He had a scar on his left calf which he says
was a skin graft. He had marked quadriceps atrophy on the
right, the right quad measuring one inch less than the left.
He also had marked calf atrophy on the right. Deep tendon
reflexes were quite brisk but symmetrical. The examiner
offered an impression of old osteomyelitis from an open
fracture of the right tibia with marked quadriceps atrophy.
He had destroyed the right ankle with post-traumatic
arthritis with varus deformity. The examiner opined that he
would not be able to continue working as a construction
worker.
An October 1995 VA examination notes that the veteran was
involved in a motor vehicle accident in 1959 where he broke
his right tibia. He had several bone graft procedures,
complicated by infection. He said he was treated with a cast
and crutch ambulation for two to three years. The wound had
not drained since approximately three years after the injury.
He had four to five grafts from 1960 to 1973. He stated he
had no significant pain in the right tibia itself, but had
significant pain in the knee since 1980, which he felt was
caused by misalignment of the leg. In 1990, he sustained a
fracture of the right ankle, which was treated with open
reduction and internal fixation, and he had significant pain
in that ankle since that time. He also complained of some
numbness and tingling in the lateral aspect of his foot for
the last several years. He had some tingling posteriorly
distal to the full thickness donor graft scar from the left
leg, but no significant pain. He complained of low back pain
since 1985. He felt his right lower extremity was
approximately one half inch shorter than his left, and felt
this caused his back pain. He never wore a shoe lift, except
for initially immediately following his injury. He worked in
construction for 32 years, but had been out of work for the
last several years. He also complained of bilateral shoulder
pain. He stated that he was diagnosed with bilateral
bursitis in 1969, which he believed was caused by crutch
walking.
Presently, the shoulder did not hurt him all the time, but
mostly with overhead activity or strenuous activity.
Physical examination of the back revealed an obvious but
slight leg length discrepancy on the right with some tilting
of the pelvis. There was no fixed deformity, as it resolved
upon sitting. He had some mild tenderness of the back in the
lower paraspinous muscles, but no palpable spasm. Range of
motion was 95 degrees of forward flexion, 45 degrees of
backward extension, 30 degrees of left lateral flexion, 40
degrees of right lateral flexion, and 50 degrees of right and
left rotation. He had no apparent pain on motion. He had a
normal neurologic examination with symmetric knee jerks.
Right ankle was not tested as ankle motion was minimal. He
had normal sensation.
Examination of the shoulders revealed forward flexion to 155
degrees on the right and 150 degrees on the left, abduction
to 120 degrees bilaterally, external rotation to 70 degrees
on the right and 60 degrees on the left, and internal
rotation to L3 or L4 bilaterally. He had normal strength to
abduction, internal, and external rotation, and a mildly
positive impingement sign. Examination of the knees revealed
a range of motion from 0 degrees to 130 degrees. He had
positive patello-femoral crepitus on the right and medial
joint line tenderness on the right. He was stable to varus
and valgus stress with a negative Lachman’s, negative
anterior drawer, and negative McMurray’s. Examination of the
right ankle revealed it was positioned in anatomic position,
however, he had 0 degrees of plantar flexion, dorsiflexion,
supination, and pronation. Measurement of the leg lengths
revealed a one centimeter leg shortening on the right. His
right foot was also approximately two centimeters shorter
than his left in length. Examination revealed several scars.
He had an 8 centimeter scar over the right iliac crest, 3
millimeters in width, which was not discolored. There was no
keloid formation, inflammation, ulceration or tenderness. It
did not appear to limit his function. He had a 10 centimeter
scar over his left iliac crest, which could be described
similarly. The scars on his thighs from the donor sites were
all extremely well-healed, not discolored at all, with normal
hair growth. they did not limit his function at all. He had
a 13 centimeter scar over his anterior right tibia, and an 8
by 4 centimeter flap area which was slightly thickened. They
were normal in color and texture. They were not swollen or
tender to palpation. There was some adherence to the
underlying bone. He had a 16 centimeter by 7 centimeter scar
over his left posterior calf, which was well-healed. This
represented a donor site which had been grafted with a split
thickness skin graft. There was slight abnormality in
texture, but it was of normal color and nontender. It did
not limit his function. He also had some scars on the medial
and lateral aspects of the right ankle. Radiographs showed
left shoulder AC joint spurring and superior subluxation of
the humeral head. The right shoulder revealed AC joint
spurring only. The knees revealed medial joint space
narrowing, right significantly greater than left.
Lumbosacral spine showed some degenerative changes L4-L5 and
L5-S1. The right ankle revealed that hardware had been
removed, and there was deformity of the fibula and severe
post traumatic degenerative changes of the ankle. The tibia
revealed a well-healed fracture. There was some translation,
but no varus, valgus, or anterior/posterior malalignment.
The examiner diagnosed multiple well-healed nontender scars
without any loss of function of the affected parts, low back
pain with degenerative joint changes, bilateral shoulder pain
with symptoms of impingement and possibly rotator cuff tears,
degenerative joint disease of the right knee, and a right
ankle fracture with extremely limited range of motion.
A December 1997 VA mental disorders examination notes that
the veteran described ongoing problems with depression since
stopping work. He felt that he was in significant pain,
which he associated with his right knee and ankle. He did
not want to do anything and did not feel like moving or
interacting with others. He had at one point apparently
wished he was dead and was placed on an antidepressant four
years prior. Prior to that he was not sleeping well, and had
no energy or appetite. He continued to have problems with
sleep when he did not take his medication, and was not very
interested in activities without his medication. He felt the
depression was because he was unable to work. He spent his
days at home watching television or occasionally visiting
with friends. He had no hobbies. He denied crying spells.
He admitted that he became suicidal in the past, but was not
currently so. He was taking Zoloft and Clonopin. He
continued to describe that he was not very interested in
things. The veteran had a history of symptoms of depression
and anxiety. He never had a psychiatric admission. He had
been married for 35 years. He had two children. He drank
approximately a twelve pack of beer per week and denied any
other substance use. Mental status examination found the
veteran alert and oriented, mildly depressed, and appearing
his stated age. Mood was depressed with a mood congruent
affect. Speech was slow and soft. There was some
psychomotor retardation. Facial expression was somewhat sad
with fair eye contact. Thought processes were somewhat
slowed but goal directed. Thought content was devoid of any
auditory or visual hallucinations. There was no evidence of
any delusional system and he denied any current homicidal or
suicidal ideation. Memory was fair for immediate, recent,
and remote events. He was able to concentrate well enough to
spell cat backwards and interpret a proverb. His
intelligence was estimated in the average to below average
range and he had partial insight into his condition. The
examiner diagnosed adjustment disorder with mixed anxiety and
depressed mood and provided a global assessment of
functioning of 63. The examiner felt the veteran’s social
adaptability and interactions were mildly impaired. His
flexibility, reliability, and efficiency in an industrial
setting were also mildly impaired to moderately impaired when
sleeping poorly. Thus, his disability was estimated in the
mild to definite range. He was competent to handle his own
funds.
At his June 1998 personal hearing, the veteran stated that he
last worked on January 20, 1994, and that he was in receipt
of Social Security disability. He stated that the disability
payments were for a disability resulting from a tree having
fallen on his ankle and destroying the ankle. The veteran
felt that the pain from his disabilities prevented him from
working. The veteran stated that the pain in his right knee
was 2 out of 10, and that the more he did, the worse the pain
was. The level 2 of pain was when he did nothing. He had
trouble with lifting, bending, and stairs, due also to his
back condition. He felt he didn’t have adequate strength in
the right leg. He felt that his orthopedic disability and
his mental condition would be aggravated if he worked. He
had been taking medication for his depression for five years.
He said that the pain had gotten 99 percent better since he
had stopped working. The veteran last worked as a
construction worker, and an electrician. It involved
reaching over his head, climbing, and rough walking. He had
worked 32 years as an electrician prior to January 1994. He
said walking and lifting bothered his back. However, he said
that he could walk without having to stop because he could
bear the pain. He did not take any pain medication. He took
aspirin when the knee or ankle was hurting pretty bad. He
said he had episodes of depression lasting approximately one
week, which had occurred five to six times over the last
year.
The Board finds that the veteran’s service-connected
disabilities resulted from common etiology or a single
accident. The veteran’s low back condition and mental
disorder are shown to be proximately due to or the result of
his right leg disability, as are the donor sites and
resulting disabilities. All are related to his inservice
motor vehicle accident. Therefore, the Board finds that for
the purposes of meeting the percentage criteria of § 4.16(a),
the veteran has a single disability, rated as 60 percent
disabling, and that he meets the criteria for consideration
for a total disability rating for compensation purposes based
on individual unemployability by reason of service-connected
disabilities pursuant to § 4.16(a).
The Board finds however, that the criteria for entitlement to
a total disability rating for compensation purposes based on
individual unemployability by reason of service-connected
disabilities are not met, as the evidence does not show that
the veteran is unable to secure or follow a substantially
gainful occupation solely by reason of his service-connected
disabilities. The Board notes that the only medical evidence
which has found the veteran to be unemployable has relied
heavily upon his nonservice-connected right ankle injury in
making that finding, as well as upon a nonservice-connected
disability of the right knee. In fact, one medical opinion
found the right ankle disability to be the bulk of his
problem. There is no medical evidence which shows that he is
precluded from working solely due to his service-connected
disabilities, without consideration of those nonservice-
connected disabilities. The Board notes that the veteran
stopped working only after incurring the right ankle
disability, and that his reason for stopping work was due to
the pain caused by that nonservice-connected disability.
The Board notes that the veteran has apparently been found
unemployed for the purposes of the Social Security
administration. However, that finding was made using
different regulations, and with consideration all of the
veteran’s disabilities rather than only the service-connected
ones. That finding is also not binding upon VA. The Board
finds that the evidence does not show that the veteran’s
service-connected disabilities preclude him from securing or
following a substantially gainful occupation.
Accordingly, the Board finds that the criteria for
entitlement to a total disability rating for compensation
purposes based on individual unemployability by reason of
service-connected disabilities are not met, and the veteran’s
claim therefor is denied. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 4.16 (1998).
ORDER
Entitlement to service connection for a bilateral shoulder
condition, secondary to the use of crutches for service-
connected residuals of a fracture of the right tibia and
fibula, is denied. Entitlement to a total disability rating
for compensation purposes based on individual unemployability
by reason of service-connected disabilities is denied. This
appeal is denied in its entirety.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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